On Thursday, 17 November, the Court of Justice annulled not only two judgments handed down by the General Court that rejected the actions that the airlines Volotea and easyJet had brought against the European Commission decision concerning the State aid that Italy granted the Sardinian airports but also the European Commission decision—finding that it had not established the existence of an advantage conferred on these two airlines.
In May 2020 (see EUROPE 12486/23), the General Court had dismissed the action brought by easyJet, Volotea, and Germanwings for the annulment of European Commission Decision of 29 July 2016, which declared aid granted by Italy to several European airlines, including the three involved in the lawsuit, with service to Sardinia to be partially incompatible with the internal market.
In its judgment, the Court of Justice annuls the decisions of the General Court, since it finds that the General Court failed to verify whether the European Commission had fulfilled its obligation to determine whether the contracts for the provision of services between the airport operators and the airlines constituted normal market transactions. According to the Court of Justice, the General Court “incorrectly” held that the market economy operator principle was not applicable, since “the region had pursued public policy objectives and acted through the intermediary of airport operators which were private undertakings”.
Moreover, according to the Court of Justice, the General Court erred in law by finding that Volotea and easyJet must be regarded as having benefitted from an “advantage” on the grounds that the remuneration that was paid to them under the contracts signed with the operators of Cagliari-Elmas and Olbia airports did not constitute consideration for services that met genuine needs for the region, and these contracts had also been entered into without implementing a tender procedure or an equivalent procedure beforehand.
Furthermore, the Court of Justice finds that the European Commission also erred in law by failing to apply the market economy operator principle in the present case as well as by accepting the existence of an advantage on the basis of legal and factual considerations that were not capable of justifying such a finding. It therefore annuls the European Commission decision.
See the judgment: https://aeur.eu/f/440 (Original version in French by Camille-Cerise Gessant)